Defense witness: prior testimony in Rivera trial was made up

TROY -- The defense of Alberto "A.J." Rivera pitted criminal against criminal Tuesday as it began its case by assailing the credibility of a man who previously testified that the defendant admitted the 2005 killing to him.

Kevin Gervasio testified Monday for prosecutors that Rivera admitted killing Amanda Burns in a conversation the two had at St. Mary's Hospital on Nov. 7, 2005, two weeks after Burns was shot and killed as she sat in a vehicle parked in an alleyway off 102nd Street.

Gervasio, a 25-year-old whose rap sheet includes some 51 arrests, said Rivera told him he killed her because she was going to give police a statement implicating him in arson.

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"He made up the whole thing," defense witness John Emma testified Tuesday. "Kevin Gervasio said that he made the whole thing up because he was trying to get out of going to jail ... The reason being he didn't want to go to prison because he had put so many people there, you know?"

Defense attorney Danielle Neroni had noted Monday that several pending felony charges against Gervasio were reduced to non-criminal violations after he testified against Rivera in 2007, when Rivera was convicted of the murder.

That conviction was overturned on appeal last year.

Gervasio recently testified against his mother in an Albany County case, and Neroni suggested his 20 felony arrests never saw convictions because he frequently cooperated with police and prosecutors.

"I never had a deal. That's why I've spent half my life in prison," said Emma, 39, who is currently incarcerated at the Downstate Correctional Facility for a parole violation.

Prosecutors in turn attacked Emma's credibility, highlighting his numerous burglary convictions and stints in state prison.

Assistant District Attorney Keith Muse was unsuccessful in arguing to Judge Robert Jacon that Emma should not be allowed to testify.

Muse told the judge that Gervasio's testimony would be bolstered if Jacon would allow a prosecution witness, Amanda Rafferty, to testify to a conversation she had with Burns the day before Burns was killed.

Burns allegedly told her she feared Rivera because he saw her watch him flee a fire. Jacon ruled before the trial that Rafferty could not tell the jury about that conversation, and he did not budge on his ruling Tuesday.

Neroni also called several Troy police officers to the witness stand to testify to their actions at the crime scene. Officers initially had a report that the suspects they sought were two black males, according to testimony.

Prosecutors allege Rivera smashed the driver's side window of a white Jeep and fired seven shots, with one striking Burns in the side and killing her.

Derrick Rosa testified that Rivera bought the gun from him earlier that day, and several witnesses -- including two sisters who encountered Rivera in the alleyway shortly before the murder -- testified that Rivera displayed the weapon.

Neroni said in her opening argument that Rivera was in the alleyway that night but did not commit the crime.

In a statement he gave to Troy Police the day after the killing, Rivera contradicted the testimony of several witnesses and said he went from a bar to a friend's house and then to his Park Avenue home that night, returning around 10 p.m., about an hour and a half before the shooting.

Two prosecution witnesses, Frank Lashway and Anthony Acuna, had testified that Rivera drove his car to the alleyway minutes before the incident. They testified that Rivera told them not to tell police what they knew.

Neroni will continue to present her case Wednesday. It is unclear if Rivera will take the witness stand.